Can photographs meet the originality requirement of copyright protection?

“Photographs are scientific pictures, not drawings, they are the naked truth … the imprint of the lens, not the product of human agency or perception.” (T. Kogan)

Copyright is a legal monopoly conferred by the Law, which protects published or unpublished original work, from unauthorized copying. It is therefore though-provoking to question whether photographs deserve such a protection, as their very nature causes confusion when considering whether photographs may be “original”.

If the answer of such a question is not straightforward it is because of the very nature of photographs. In fact, all photographs are intrinsically copies of other subjects, such as statues, paintings or persons. Photographs have always occupied an uneasy position under copyright laws in the whole world, as the act of taking a photograph is by its very nature a mechanical work reproducing an existing work.

Because taking a photograph is essentially a technical operation, legal authors have therefore questioned whether it is possible for photographs to meet the originality requirement to make a photograph copyrightable. Due to its intrinsic nature, one could question: Given that every photograph is a mirror-like image of whatever happens to be sitting in front of the camera, is it possible for the photographer to show an artistic input? Therefore, opponents pointed out that the minimal degree of personality is not feasible, given that an image results automatically from a “mechanical contrivance”- the mere clicking of a camera’s shutter release.  This view relegates thus the photographer to the role of mere technician unable of infusing his own personality into the photograph.

Despite such confusion, Belgian courts clearly did no follow such a position and consider that photographs are protected under Belgian copyright law of 30 June 1994 provided that they are original. The degree of originality required is a basic one and can be met with regard to the choices of the photographer as to the subject matter, angle, filters, film, lights, position of the camera, the choice of the exact moment to take the photograph, the length of the exposure, selection of background, shading and other variants.

It goes without saying that judges can easily identify those elements in a photograph, although banal and ordinary, which makes it original. Therefore, the very low level of the originality requirement leads to the fact that it is extremely rare for a photograph to lack originality and not be protected.